Bishan Das And Others vs The State Of Punjab And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Writ Petition No. 24 of 1960

Decision Date: 19 April 1961

Coram: S.K. Das, Bhuvneshwar P. Sinha, A.K. Sarkar, N. Rajagopala Ayyangar, J.R. Mudholkar

The matter before the Supreme Court was titled Bishan Das and Others versus the State of Punjab and Others, decided on 19 April 1961. The judgment was authored by Justice S.K. Das and the bench comprised Justices Bhuvneshwar P. Sinha, A.K. Sarkar, N. Rajagopala Ayyangar and J.R. Mudholkar. The case is reported in 1961 AIR 1570 and 1962 SCR (2) 69, with subsequent citations including RF 1976 SC 1207, R 1982 SC 33, D 1986 SC 872 and F 1989 SC 997. The dispute concerned the alleged infringement of fundamental rights under Articles 14, 19 and 31 of the Constitution of India, arising from the construction of a dharmasala, a temple and associated shops on government land with governmental permission, using joint‑family funds. One family member, Ramjidas, had built these structures with the joint‑family contributions and the consent of the government. After his death, the remaining family members who were managing and in possession of the property were dispossessed by the State, its officials and the local municipality, which assumed possession. The petitioners first approached the Punjab High Court seeking writs under Article 226, but the court dismissed the petition on the preliminary ground that the case involved disputed questions of fact. An appeal to that order was likewise dismissed for the same reason. Consequently, the petitioners filed a writ petition under Article 32 before this Court, contending that their eviction had been carried out without any legal authority and in breach of the Constitution. The State, on the other hand, argued that the property, being a trust situated on government land, rendered the petitioners mere trespassers who could be removed with minimal force, and relied on the decision in Sohal Lal v. Union of India to assert that writ relief was inappropriate where factual and title disputes existed. The Court held that, based on the admitted facts, the petitioners could not be regarded as trespassers concerning the dharmasala, temple and shops, nor could the State be deemed the owner of the property regardless of whether it was a trust, public or private. The Court observed that the maxim “what is annexed to the soil goes with the soil” is not an absolute rule in this country, and that the State, if it wished to remove the structures or resume the land, must pursue the appropriate legal process. The Court referred to the authorities Thakoor Chunder Parmanick v. Ramdhone Bhuttacharjee (1866) 6 W.R. 228, Lala Beni Ram v. Kundan Lall (1899) L.R. 26 I.A. 58 and Narayan Das Khettry v. Jatindranath (1927) L.R. 45 I.A. 218, and concluded that even if Ramjidas had acted solely as a trustee, this would not empower the State or its officers to take the property without lawful authority.

The Court rejected the contention that the State could seize the property by exercising its own authority and that the petitioners were trespassers who could be removed through an executive order, describing such a view not only as unfounded but also as dangerously misleading. The Court observed that it was unnecessary to resolve the contested factual issues or to delineate the exact legal rights of the petitioners in this matter. It was sufficient to note that the petitioners were in genuine possession of the dharmasala, temple and adjoining shops and that they could not be lawfully dispossessed except by a valid legal authority. Consequently, the executive action undertaken by the State in the present case was condemned as contrary to the fundamental principles of the rule of law. The Court characterized the action as highly discriminatory and autocratic, emphasizing that it deprived the petitioners of possession of their property without any reference to an applicable law or legal sanction. The judgment arose under the original jurisdiction of a writ petition numbered 24 of 1960, filed under Article 32 of the Constitution of India for the enforcement of fundamental rights. Counsel for the petitioners consisted of C. B. Aggarwala and K. P. Gupta, while counsel for respondents numbered 1, 2 and 4 were N. S. Bindra and D. Gupta, and counsel for respondent number 3 were K. L. Mehta and K. L. Hathi. The judgment was delivered on 19 April 1961 by Justice S. K. Das. The petition concerned a dharmasala, an adjoining temple and several appurtenant shops situated on land near the railway station in Barnala, district Sangrur, Punjab. The petitioners identified themselves as the sons, grand‑sons, a daughter of the late Lala Ramji Das and the widow of Tara Chand, a predeceased son of Lala Ramji Das. According to their brief, Lala Ramji Das, who died in 1957, had constructed the dharmasala, temple and shops around 1909 using funds of the joint family comprising himself and the petitioners, and he had managed these premises on behalf of the family during his lifetime. The dharmasala was intended for the benefit of travelers and functioned as a rest house; the temple housed three deities and was used for public worship without formal dedication; the shops were leased to generate rent for the maintenance of the dharmasala and temple. The petitioners asserted that after Ramji Das’s death they continued to occupy the properties, but in January 1958 the State of Punjab, certain officials and the Municipal Committee of Barnala, by force and without any legal authority, dispossessed them of the dharmasala, deprived them of control and management of the dharmasala and temple, and attempted to interfere with their administration of the adjoining shops. The Municipal Committee was said to have taken possession of the dharmasala and established its office in the main room. The petitioners initially sought copies of the orders authorising these actions but were unable to obtain them.

The petitioners explained that they first sought a copy of the orders that had been issued as the basis for the dispossession, but despite repeated attempts they were unable to obtain those documents. Consequently they filed an application under Article 226 of the Constitution before the Punjab High Court. The High Court dismissed the application on the preliminary ground that the controversy involved questions of fact that were contested, and it held that the court could not entertain the petition on that basis. The petitioners also appealed the High Court’s decision, but the appellate court affirmed the same reasoning and dismissed the appeal for the identical reason that the matters raised required factual determination.

Undeterred, the petitioners then instituted the present writ petition, contending that both the orders that authorised the dispossession and the dispossession itself amounted to a flagrant violation of their fundamental right to hold and possess the disputed properties until such possession is lawfully surrendered. In support of this claim they presented several specific prayers. First, they asked that a suitable writ, order or direction be issued to set aside any illegal orders issued by the State Government, the Deputy Commissioner of Sangrur, and the Sub‑Divisional Magistrate of Sangrur, if any such orders exist, and that possession, management and control of the dharmasala, the temple and the adjoining shops be restored to the Municipal Committee of Barnala in Sangrur district. Second, they sought a writ, order or direction prohibiting the respondents from interfering with the petitioners’ management of the temple and the shops, and from obstructing the petitioners’ right to collect rent from those shops. Third, they requested a writ, order or direction directing the respondents to withdraw their possession, control and management of the dharmasala and the other properties and to place the petitioners back in possession thereof. Finally, they asked that the Court grant any further writ, order or direction that it may deem appropriate in the interests of the petitioners.

At this juncture the Court found it necessary to recount briefly the early history of the dharmasala, temple and shops, relying solely on the undisputed documents that had been placed before it. The land on which these structures stand was recognised as “nazul” property of the former State of Patiala. In the year 1909, Lala Ramji Das, who operated a joint‑family business under the name and style of Faquir Chand Bhagwan Das, applied for permission to construct a dharmasala on that land. The site was located close to the Barnala railway station and was therefore considered convenient for travellers. Initially the Patiala Government granted permission to the Choudhuris of Barnala bazar to erect a dharmasala, but those individuals were unable to marshal sufficient funds for the project. Subsequently, Ramji Das submitted a fresh request seeking sanction to build the dharmasala in the name of his firm, Faquir Chand Bhagwan Das, and to bear all expenses himself. In May 1909 the government accorded this sanction and communicated it to Ramji Das through the Assistant Surgeon in charge of the Barnala hospital, a officer who was presumably responsible for public‑health matters in the town. The sanction was conditional, as set out in Exhibit A, and imposed the following stipulations: (1) no tax shall be levied on the land; (2) the shopkeepers shall provide a “piao” (a shed for supplying drinking water) for passengers and shall maintain it; (3) plans of the proposed building must first be submitted to the Assistant Surgeon for approval; (4) the occupants shall observe cleanliness and sanitary regulations and shall construct adequate drainage; (5) no permission shall be granted for the construction of any shop; (6) the building shall be erected solely for the benefit of passengers; and (7) failure to fulfil any of these conditions would empower the State to dispossess the occupants of the land. The dharmasala was completed in 1909, bearing an inscription on stone that read “Dharmasala Lala Faquir Chand Bhagwan Das, Mahajan, 1909.” Although the original conditions barred the erection of shops, a number of shops were later constructed with the approval of the relevant authorities to generate revenue for the maintenance of the temple and the dharmasala.

The Assistant Surgeon who was in charge of public health arrangements at Barnala communicated to Ramji Das that the permission to construct the dharmasala would be subject to six conditions. The first condition stipulated that no tax would be levied on the land from the parties concerned. The second condition required the shop‑keepers to provide a “Piao,” that is, a shed for supplying drinking water to passengers, and to keep it in good order. The third condition demanded that the plans of the building intended for construction be placed before the Assistant Surgeon before any work could commence. The fourth condition imposed on the parties the duty to observe cleanliness and sanitary rules and to construct proper drains. The fifth condition prohibited the grant of any permission to construct shops; the building was to be erected solely for the use of passengers. The sixth condition warned that if any of the foregoing conditions were not complied with, the State would dispossess the parties of the land.

In 1909 the dharmasala was erected and a stone inscription bearing the words “Dharmasala Lala Faquir Chand Bhagwan Das, mahajan, 1909” was placed on it. Although the fifth condition expressly forbade the construction of shops, a number of shops were subsequently built with the approval of the authorities, ostensibly to meet the expenses of maintaining the temple and the dharmasala. In 1911 a complaint was lodged against Ramji Das (Exhibit B) alleging that he was using the dharmasala for private purposes, among other accusations. No apparent action resulted from that complaint.

In January 1925 Ramji Das made a statement to the Tahsildar of Barnala in which he asserted that the inn land had been given to him by the Government by way of a waqf. He claimed to have invested his own money in constructing the building for charitable purposes and expressed that he did not intend to derive any personal benefit. He stated that the Government was entitled to supervise the accounts but that the premises should not be used as a Government building nor should anyone be allowed to have a permanent residence there. He emphasized that the inn should be reserved specifically for the convenience of arriving and departing passengers and that the rent earned from the shops, amounting to fifteen to sixteen rupees per month, should be spent on repairs. He further explained that he had appointed an inn‑keeper at a salary of eleven rupees per month, drawn from the shop rent, to supervise the premises on a permanent basis. This statement was made during an enquiry whose exact commencement date is not clear from the record, though it appears to have been instituted around 1920.

On 7 April 1928 the Revenue Minister of Patiala State issued an order declaring that, although the land on which the dharmasala stood was originally Government land (nazul property), it would not be appropriate to label it as such. The order directed that the dharmasala should continue to exist for the benefit of the public. The order concluded with the direction that the inn should be maintained as it is for public benefit, but that neither Ramji Das nor any other person would be competent to transfer it in any manner.

The order stated that no one, including Ramji Das, could transfer the property in any manner. Ramji Das was to remain as manager, and the income generated from the premises was to be spent on the inn for the benefit of the public. The order further declared that any transfer made by Ramji Das, any other person, or any manager would be unlawful and invalid; in such a case the Government would escheat the property, yet even then the inn would continue to be used for public benefit. The order also prohibited any government servant from establishing a permanent residence in the inn and barred the sale of the property as Nazool (government‑owned) land. However, the difficulties did not cease with this order of the Revenue Minister. A re‑investigation appears to have been ordered, apparently at the request of the Sanatan Dharma Sabha, Barnala. In that second enquiry, the Nazim of the district Barnala reported that the dharmasala and the adjoining temple had been constructed by Ramji Das; that Ramji Das employed three workers—one to perform worship, one to look after travelers, and a third to keep the premises clean; that no authority had directed Ramji Das to keep accounts; and that repairs and other expenditures were funded from the rents of the shops attached to the complex. In his order, the Nazim declared that the “Sarai” was to be deemed State property, presumably because it stood on Government land. Later, Ramji Das obtained further permission to build a raised platform and other extensions, details of which are not necessary for the present discussion. The record then moves to the year 1954. On 10 September 1954, Gopal Das, the Secretary of the Congress Committee in Barnala, filed a petition before the Revenue Minister of Patiala. The petition made several allegations against Ramji Das and prayed that Ramji Das be suspended and that the State assume management of the dharmasala and its related facilities. The Tahsildar examined the petition and again found that the dharmasala had been constructed by Ramji Das on Government land, that it served the public, and that Ramji Das had been managing it continuously. The Tahsildar reported that Ramji Das was required to render accounts, but he had failed to do so and treated the property as his own; consequently, he should be removed and his earlier accounts produced. The matter was thereafter referred to the Legal Remembrance of the State Government. That officer referred to the earlier order of the Revenue Minister and observed that, although the dharmasala and temple stood on Government land, they were not Government property. Moreover, even though Ramji Das denied the existence of a public trust, he functioned as a trustee of a trust created for charitable or religious purposes, and his removal could only be effected by a suit instituted under section 92 of the Civil Procedure Code. The proceedings appear to have concluded at that point, and no further action was taken against Ramji Das in response to Gopal Das’s petition. The narrative also notes an earlier order of the Revenue Minister dated 13 December 1954, which directed the execution of a deed of trust appointing Ramji Das and two others as trustees, a deed that was never executed.

The judgment records that an order of the Revenue Minister dated 13 December 1954 directed that a deed of trust should be executed, appointing Ramji Das and two other individuals as trustees, but no such trust deed was ever executed. After the death of Ramji Das on 10 December 1957, the petitioners continued to manage the dharmasala, the temple and the shops attached to them; this continued management was not seriously contested before the Court. The petitioners paid the requisite taxes and electricity charges, obtaining receipts for those payments, and they also collected rent from the shops. Around 23 December 1957, Gopal Das and several others, describing themselves as members of the public in Barnala, filed an application stating that, because Ramji Das had died, new arrangements were required for the proper management of the dharmasala, which served public benefit. This application prompted a fresh examination of the old documents, after which the Sub‑Divisional Officer of Barnala recommended, in the interest of the Government (noting that Barnala had recently become part of the Punjab State), that the Municipal Committee of Barnala should immediately assume charge of the dharmasala’s management. The Deputy Commissioner of Sangrur endorsed this recommendation and wrote to the Punjab Government seeking the necessary sanction. Although the sanction was not produced before the Court, the counsel for the respondents submitted the letter written by the Deputy Commissioner. The letter, addressed “Subject: Management of ‘Sarai’ near Railway Station, Barnala,” stated that Shri Ramji Das had been appointed as Manager by an order of the Revenue Minister of the former State of Patiala dated 26‑December‑1987, and that his role was solely to look after the property and use its income for improving the ‘Sarai’ for public welfare. The letter further reported that Shri Ramji Das had died and that no other manager existed for the ‘Sarai’. Consequently, the Sub‑Divisional Officer, Barnala, had recommended that, in the Government’s interest, management of the ‘Sarai’ be immediately entrusted to the Municipal Committee of Barnala, and the Deputy Commissioner expressed full agreement with this view, directing the hand‑over to the Municipal Committee pending Government approval. Acting on the Deputy Commissioner’s direction, the Kanungo, presumably following the Sub‑Divisional Officer’s orders, removed the petitioners from a part of the dharmasala on 7 January 1958 and transferred charge of that portion to the Municipal Committee of Barnala. The petitioners contest these orders, alleging that they were issued without legal authority and that the actions taken under them constitute a flagrant violation of their fundamental rights under Articles 14, 19 and 31 of the Constitution. They contend that the State and its officers deprived them of property through executive orders lacking legal basis, denied them equal protection of the laws, and arbitrarily infringed their fundamental right to hold property, thereby undermining the basic principles of the rule of law guaranteed by the Constitution.

The petitioners contended that the executive actions taken against them were undertaken without any legal authority, thereby depriving them of equal protection of the laws and violating their fundamental right to hold property in an arbitrary and destructive manner that contravened the basic principles of the rule of law guaranteed by the Constitution. In response, the Sub‑Divisional Officer of Barnala executed an affidavit on behalf of the respondents. The affidavit asserted, among other matters, that the property in dispute was trust property of a public and charitable character and that the petitioners were not entitled to claim any proprietary rights over it. Even assuming that the property was indeed a public charitable trust, the affidavit failed to identify any statutory or other legal authority that would permit the State or its executive officers to dispossess the petitioners of the dharmasala. Counsel for the respondents attempted to justify the dispossession by portraying the petitioners as mere trespassers and argued that, because the land on which the dharmasala stood was owned by the State, the respondents were entitled to employ the minimum necessary force to evict the alleged trespassers. The respondents further relied on the decision in Sohan Lal v. The Union of India (1) [1957] S.C.R. 738, contending that a serious factual dispute existed regarding the petitioners’ title and that a writ proceeding would effectively amount to a decree declaring ownership and ordering restoration of possession, which they deemed inappropriate. The Court considered both of these contentions to be without merit and concluded that the petitioners had clearly demonstrated a violation of their fundamental rights.

Another point of argument before the Court concerned the legal effect of the sanction granted in 1909 to Ramji Das, subject to the conditions previously mentioned. The respondents questioned whether that sanction constituted a lease in favour of the firm Faquir Chand Bhagwan Das, a licence coupled with a grant, or an irrevocable licence as defined in section 60(b) of the Easements Act, 1882. The Court noted that these questions were contested but fell outside the scope of the present proceedings. The facts admitted for the purpose of the present case were that the land on which the dharmasala, temple and shops stood belonged to the State, and that, with the State’s permission, Ramji Das, acting on behalf of the joint‑family firm of Faquir Chand Bhagwan Das, constructed the dharmasala, the temple and the adjoining shops and managed them during his lifetime. After Ramji Das’s death, the petitioners, who were other members of the same joint family, continued to manage the premises. On the basis of these admitted facts, the Court held that the petitioners could not be regarded as trespassers in relation to the dharmasala, temple and shops, nor could it be said that those structures belonged to the State, irrespective of any remaining question as to whether the trust created was of a public or private nature.

In this matter, the Court considered whether the trust that had been constituted was a public trust or a private trust. The Court observed that even when a trust is a public trust, the removal of a trustee must follow the procedure established by law; a trustee cannot be removed merely by an executive order. The Court further noted that the traditional maxim that whatever is attached to the soil belongs to the soil has long ceased to be treated as an absolute rule of law in this country. The Court referred to the authorities in Thakoor Chunder Parmanick v. Ramdhone Bhuttacharjee (1), Lala Beni Ram v. Kundan Lall (2) and Narayan Das Khettry v. Jatindranath (3) to illustrate this point. Those decisions demonstrate that a person who, in good faith, erects structures on land owned by another party with the owner's permission is not a trespasser, and the resulting buildings do not automatically pass to the landowner by operation of the maxim quicquid plantatur solo, solo cedit. Consequently, the Court held that it was impossible to conclude that, with respect to the dharmasala, the temples and the shops, the State had acquired any right merely because the buildings stood on State land. If the State believed that the structures should be removed or that the land should be resumed, the State was entitled to initiate appropriate legal proceedings to achieve that end. Even if the State chose to argue that the trust was a public trust, it was still required to follow the proper legal process for removing the trustee, as advised by the State’s Legal Remembrancer.

The Court explained that it is well‑recognised that a suit under section 92 of the Civil Procedure Code may be filed against anyone who possesses the trust property, even if that person claims to be the owner of the property or denies the existence of the trust altogether. Counsel for the respondents referred to a statement made by Ramji Das in 1925 and to an order issued by the Revenue Minister on 13 December 1954, contending that Ramji Das had admitted that he himself was a trustee. The Court accepted that such a statement might be true, but it rejected the contention that the State or its officers could, on that basis, take the law into their own hands and remove a trustee by an executive order. Accordingly, the Court repelled the argument that the petitioners were trespassers who could be ousted by an executive fiat. The Court described that argument as not only unfounded but also potentially dangerous because of its broader implications for law and order. Regarding the second line of argument, the Court found it unnecessary to resolve any disputed factual issues or to determine the exact nature of the right that the petitioners derived from the 1909 sanction granted to their firm. The Court simply concluded that the petitioners were in good‑faith possession of the structures in question and that they could be removed only pursuant to a lawful authority.

The respondents infringed the petitioners’ fundamental rights by stripping them of possession of the dharmasala through executive orders, an act that the Court found unlawful and therefore ordered to be set aside, directing that the respondents be restrained from any further interference with the petitioners’ management of the dharmasala, the temple and the adjoining shops, and directing that a writ be issued accordingly. The Court observed that the executive action taken by the State and its officers in this matter fundamentally undermined the principle of the rule of law, and it felt compelled to stress this point before concluding the case. The factual and legal position, as articulated by the Court, was clear: first, the structures erected on the parcel of Government land did not constitute Government property; second, the petitioners had lawfully possessed and occupied those structures; and third, according to the statutes applicable to the Government, any dispossession of the petitioners could occur only pursuant to a decree of a Civil Court issued after the proper initiation of judicial proceedings. In light of these facts, the Court held that the Government’s decision to take the law into its own hands and to expel the petitioners through the use of force demonstrated a stark disregard for the procedural safeguards demanded by the rule of law, which are essential in a constitutional society that shields citizens from arbitrary executive intrusion upon peaceful property possession. Citing the decision in Wazir Chand v. The State of Himachal Pradesh (1), the Court reiterated that the State or its officials may not encroach upon the rights of individuals unless a specific legal provision authorises such action. Moreover, referring to Ram Prasad Narayan Sahi v. The State of Bihar (2), the Court noted that legislation that singles out a particular person for a disadvantage not imposed on others corrodes the very vitality of the rule of law. Consequently, the Court characterised the executive order at issue as a highly discriminatory and autocratic measure that deprived the petitioners of their property rights without any reference to a valid law or legal authority. Even assuming that the property in question were held in trust, the Court found it difficult to justify how the Municipal Committee of Barnala could assume the role of trustee solely based on an executive determination. The Court also observed that the reasons supplied for this extraordinary action were disturbing and lacked any substantive legal basis, as reflected in the cited authorities ([1955] 1 S.C.R. 408 and [1953] S.C.R. 1129). Accordingly, the Court allowed the petition, awarded costs, and ordered that the writ be issued as directed.